Crew v. Commissioner of Department of Corrections and Rehabilitation
Filing
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FINDINGS and RECOMMENDATIONS Recommending Denial without Prejudice Defendant's Motion for Summary Judgment and Denial of Plaintiff's Related Motions in Opposition signed by Magistrate Judge Barbara A. McAuliffe on 04/03/2018. Referred to Judge O'Neill; Objections to F&R due by 4/20/2018.(Flores, E)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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DAVID CREW,
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Plaintiff,
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Case No. 1:16-cv-00590-LJO-BAM (PC)
v.
DEPARTMENT OF CORRECTIONS
AND REHABILITATION, et al.,
Defendants.
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(ECF Nos. 44, 47)
FOURTEEN (14) DAY DEADLINE
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FINDINGS AND RECOMMENDATIONS
RECOMMENDING DENIAL WITHOUT
PREJUDICE DEFENDANT’S MOTION FOR
SUMMARY JUDGMENT AND DENIAL OF
PLAINTIFF’S RELATED MOTIONS IN
OPPOSITION
I.
Background
Plaintiff David Crew (“Plaintiff”) is a state prisoner proceeding pro se and in forma
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pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action proceeds on
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Plaintiff’s second amended complaint against Defendant Patel for deliberate indifference in
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violation of the Eighth Amendment arising from his intentional refusal or delay of Plaintiff’s
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medical care related to the removal of staples from Plaintiff’s stomach from a prior surgery.
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(ECF No. 24.)
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From June 2017 through February 2018, Plaintiff filed a motion to file an emergency
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amended complaint, as well as a series of motions in support. (ECF Nos. 30, 39, 45.) In addition,
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the parties filed various motions relating to discovery disputes and other matters. (ECF Nos. 38,
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40, 41, 42, 43, 49, 50.)
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On September 11, 2017, Defendant Patel filed a motion for summary judgment on the
ground that Plaintiff failed to exhaust available administrative remedies. (ECF No. 44.)
On September 29, 2017, Plaintiff filed a motion to file a factual dispute of Defendant’s
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summary judgment motion, a motion to file a criminal complaint, a motion for emergency trial by
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jury, and a motion to dismiss the summary judgment motion to exhaust. (ECF No. 47.) It
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appeared that Plaintiff intended this motion to be an opposition to Defendant’s motion for
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summary judgment. Defendant Patel filed a response on October 27, 2017. (ECF No. 48.)
On March 29, 2018 the Court issued an order granting Plaintiff’s motions regarding the
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filing of a third amended complaint, and denying, without prejudice to re-filing, the other pending
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motions related to discovery. (ECF No. 52.) The Court also vacated the discovery and
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scheduling order issued on June 13, 2017.
Remaining before the Court are Defendant’s motion for summary judgment and Plaintiff’s
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related motions filed in opposition. These motions are deemed submitted.
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II.
Discussion
Pursuant to the Court’s March 29, 2018 order, Plaintiff’s third amended complaint is
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currently due on or before April 1, 2018. (ECF No. 52.) Based on the unsettled nature of the
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operative complaint and the absence of a scheduling order, the Court finds it appropriate to
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recommend denial of Defendant’s motion for summary judgment, without prejudice to re-filing.
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In the event that new claims or defendants are added to this action and the Court issues an
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amended discovery and scheduling order, the Court will reset the applicable deadlines for
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discovery and the filing of any dispositive motions. As such, Defendant will be permitted to re-
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file a motion for summary judgment on the ground of failure to exhaust available administrative
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remedies which addresses all claims and defendants that have been allowed to proceed in this
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action.
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With respect to Plaintiff’s motion to file a factual dispute of Defendant’s summary
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judgment, and related motions, Plaintiff is advised that this filing does not comply with Federal
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Rule of Civil Procedure 56(c) or Local Rule 260(b). In the event that Defendant files a renewed
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motion for summary judgment, Plaintiff is warned that any opposition must comply with Federal
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Rule of Civil Procedure 56(c) and Local Rule 260(b).
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To the extent Plaintiff seeks to bring a criminal complaint in regards to any actions or
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inactions by Defendant, Plaintiff is advised that the Court cannot compel any local prosecutor to
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instigate a criminal prosecution of this matter. See, e.g., Bettencourt v. Parker, No. 1:16-cv-
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00150-DAD-BAM (PC), 2016 WL 4137242, at *2 (E.D. Cal. Aug. 4, 2016); Badwi v. Hedgpeth,
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No. C 08-02221 SBA PR, 2011 WL 89729, at *1 (N.D. Cal. Jan. 11, 2011).
As to Plaintiff’s request to set this matter for trial, as the Court has granted Plaintiff’s
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motion to amend the complaint, this request is premature. The Court is required to screen
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complaints brought by prisoners seeking relief against a governmental entity or officer or
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employee of a governmental entity. 28 U.S.C. § 1915A(a). Plaintiff’s amended complaint, or
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any portion thereof, is subject to dismissal if it is frivolous or malicious, if it fails to state a claim
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upon which relief may be granted, or if it seeks monetary relief from a defendant who is immune
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from such relief. 28 U.S.C. § 1915A(b)(1), (2); 28 U.S.C. § 1915(e)(2)(B)(ii). Once Plaintiff has
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filed a third amended complaint, it will be screened in due course.
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III.
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Conclusion and Recommendations
Accordingly, IT IS HEREBY RECOMMENDED as follows:
1. Defendant’s motion for summary judgment, (ECF No. 44), be DENIED, without prejudice
to re-filing; and
2. Plaintiff’s motion to file factual dispute of summary judgment, motion to file criminal
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complaint, motion for emergency trial by jury, motion to dismiss summary judgment, and
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motion to exhaust, (ECF No. 47), be DENIED.
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These Findings and Recommendation will be submitted to the United States District Judge
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assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within fourteen
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(14) days after being served with these Findings and Recommendation, the parties may file
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written objections with the court. The document should be captioned “Objections to Magistrate
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Judge’s Findings and Recommendation.” The parties are advised that failure to file objections
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within the specified time may result in the waiver of the “right to challenge the magistrate’s
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factual findings” on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing
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Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).
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IT IS SO ORDERED.
Dated:
/s/ Barbara
April 3, 2018
A. McAuliffe
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UNITED STATES MAGISTRATE JUDGE
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